2002 PLP 1517 (YLR)

(b) Criminal Procedure Code (V of 1898)‑‑‑ ‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail‑-‑Police opinion‑‑‑Opinion of the police may not be binding upon the Court but the same is relevant and can be considered at bail stage specially when there is no contrary opinion. Muhammad Arif Alvi, Khalid Ibn‑e- Aziz and Abdul Salam Alvi for Petitioner. Malik Wazir Ghazi for the Complainant. Amjad Mumtaz for the State. Muhammad Razzaq petitioner has sought his post‑arrest bail in case F.I.R. No.211 registered at Police Station City Kahror Pacca, District Lodhran on 24‑10‑2001 for an offence under section 302/34, P.P.C.

2. Briefly, the facts as mentioned in the F.I.R. are that the petitioner while armed with a hatchet alongwith his two brothers Muhammad Iqbal armed with a revolver and Ijaz armed with Sota launched a murderous assault on Muhammad Siddique son of the complainant. Muhammad Iqbal repeatedly fired at Muhammad Siddique while according to F.I.R. Ijaz inflicted a Sota blow on the deceased. Muhammad Siddique succumbed to the injuries.

3. The learned counsel for the petitioner submit that three brothers have been involved in the case and no overt act has been attributed to the petitioner who was found innocent during investigation. Conversely, the learned counsel appearing on behalf of the complainant and the learned counsel for the State have vehemently opposed the grant of bail to the petitioner and it is submitted on their behalf that the petitioner is named in promptly lodged F.I.R., the name of the accused has recorded in the F.I.R. and all the P.Ws. stuck to their statements recorded under section 161, Cr.P.C. The petitioner alongwith other co -accused had hidden themselves in a cotton field and were waiting for the arrival of the deceased, therefore, has shared the common intention. It has also been argued that D.S.P and the S.H.O. mala fide intentions have included the names of Muhammad Akhtar and Riaz in the list of accused who were wrongly involved in the case and the complainant of others P.Ws. did not state a word against Akhtar and Riaz during the investigation Lastly it has been argued that the charge has been framed, and the evidence in the case could not be recorded as the petitioner and other accused have not engaged a learned counsel to represent.

4. I have heard the learned counsel for the parties and have also perused the record. It has been noticed that although the petitioner was shown to be armed with hatchet yet he did not cause any injury to the deceased. Nothing has been recovered from him during the investigation and according to the report under section 173, Cr.P.C. submitted before the Court the petitioner has been placed in Column No.2. The opinion or the police may not be binding upon the Court but the same is relevant and can be considered at bail stage specially when there is no contrary opinion. The allegation against the petitioner needs further probe and inquiry within the ambit of subsection (2) of the section 497, Cr.P.C. and bail cannot be denied to the petitioner on the ground of propriety when the petitioner qualifies himself for his release on bail under the statute. Reliance is placed on the case of Muhammad Ismail v. Muhammad Rafiq (PLD 1989 SC 585).

5. For what has been discussed above I am inclined to admit the petitioner to bail subject to his furnishing bail bond in the sum of Rs.1,00,000 (Rupees one hundred thousand only) with one surety in the like amount to the satisfaction of the learned trial Court. N.H.Q./M‑1331/L Bail allowed.